Bacon v. Mayor, Etc., of Savannah
| Decision Date | 10 December 1890 |
| Citation | 12 S.E. 580,86 Ga. 301 |
| Parties | BACON v. MAYOR, ETC., OF SAVANNAH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where the same statute which confers authority for issuing an execution to enforce the payment of an assessment made upon abutting property to defray the cost of improving the street on which such property abuts provides that the defendant shall have the right to file an affidavit denying that the whole or any part of the amount for which the execution issued is due, an affidavit, which, in one of its grounds sets forth such a denial in express terms as to the whole and every part, entitles the defendant to a trial upon all questions of law, and all open questions of fact, involved in the controversy.
2. The constitutional questions raised by the special grounds in the affidavit filed in this case are virtually decided by Speer v. Athens, 85 Ga. 49, 11 S.E. 802, and the authorities therein referred to.
3. A statutory power to improve any of the streets, or any portion of the width of any street, in the city, includes the power to improve either the whole or less than the whole of any street. One street may be divided into two sections, and one section improved with a double, the other with a single paved track. The property abutting on each section may be separately assessed for the cost of improving the section to which it belongs. For this purpose, each section may be treated as a street.
4. Authority to grade, pave, macadamize, or otherwise improve for travel or drainage, is broad enough to comprehend all work and materials embraced in the assessment now in question.
5. Though the statute conferring power to improve the streets contemplates that the power shall not be exercised until after the adoption of an ordinance by a two-thirds vote of the municipal body, requiring the improvement to be made, and assessing two-thirds of the cost thereof on the real estate abutting on each side of the street improved, the ordinance itself need not specify or designate the materials, or the kind of materials, to be used in paving the street. The choice of materials may be made after the adoption of the ordinance, and by resolution, or otherwise, as the ordinance may provide.
6. Though the statute certainly contemplates that the tracks of street railroads, and a space of two feet on either side thereof, shall be paved or macadamized by the companies at their own expense, and abutting owners cannot be required to contribute to the cost thereof, yet a broad street may well admit of general improvement as a system separate and distinct from the macadamizing or paving of the street railroads located thereon. Where this is so, abutting owners may be required to contribute their proper part to defray the cost of general improvement, whether the special improvement required of railroad companies be made or not.
7. The statute requires no assessment to be made by ordinance, save that which fixes the proportion of cost to be paid by the city as a municipality, and by abutting owners respectively nor does it require preliminary estimates of amounts, or that amounts be otherwise ascertained and fixed by the ordinance. As the ordinance places the execution of its provisions in the hands of the committee on streets and lanes, the ministerial duties of that committee would include the auditing of bills, and ascertaining the actual cost of the work; also, the measurement of frontage, and the apportionment of two-thirds of the whole cost among the several abutting owners, according to the frontage of each. The legality and accuracy of these ministerial acts are open to question on a general affidavit of illegality to the execution.
8. Where the statute authorizes the city government "to assess two-thirds of the cost *** on the real estate abutting on each side of the street or lane improved," and requires "the frontage" of intersecting streets and lanes to be assessed as real estate abutting on the street improved, the assessment may be apportioned among the several property owners by frontage alone, without reference to the depth, superficial area, or estimated value of the various parcels of abutting property.
9. The statute requiring the frontage of intersecting streets and lanes to be assessed as real estate, and that the mayor and aldermen shall be treated as owners, and pay from the city treasury the just pro rata of cost for and according to said frontage, the cost of improving intersections is not to be dealt with separately, paid by the city, and deducted from the total cost, but is to be included in such total cost when the apportionment is made among the various property owners, and the city is to be charged, just as any other owner, with its pro rata share of the total cost according to frontage.
10. No part of a street fronts on the street of which it is a part. The intervening space between two paved tracks in the same street is no intersection, nor has the city any ownership of the same different from its ownership of the whole breadth of the street. The city is not chargeable with the margins of this intervening space as frontage.
11. The execution is not invalid because it purports on its face to issue for "proportion of the cost of paving or otherwise improving Liberty street in said city with asphalt in front of, and abutting on, the said real estate." The real estate must abut on the street, if the street is in front of and abutting on the real estate.
12. The words "time, place, and manner of sale" do not embrace the newspaper in which the sale is to be advertised. Consequently section 3656a of the Code does not require that sales for municipal taxes shall be advertised in the same newspaper in which sheriff's sales for city and county taxes are advertised.
Error from superior court, Chatham county; FALLIGANT, Judge.
R. R. Richards and J. R. Saussy, for plaintiff in error.
S. B. Adams, for defendant in error.
1. The ordinance for improving Liberty street rests directly on the act of 1887, but the remedy by execution for enforcing the assessments made on abutting property is derived from the act of 1885. See Acts 1887, p. 537; Acts 1884-85, p. 362. From the terms of the fifth section of the later act, it would seem that the provisions of the earlier act in relation to remedy were intended to be brought forward, and made applicable to improvements authorized by the later act itself, or, rather, by any ordinance passed in pursuance of the authority which it confers on the municipal government. Of course, if the act of 1885 is good for issuing execution without suit, it is also good for the defensive means which it lays down to resist the execution. Touching these means, it says expressly "that the defendant shall have the right to file an affidavit denying that the whole or any part of the amount, for which the execution issued, is due." In the present case, the seventeenth ground of the affidavit of illegality is in these words: "The amount for which said execution is proceeding is not due and payable by the said real estate, or by this defendant as the owner thereof, nor is any part of said amount due or payable by the said real estate, or by this defendant as the owner thereof." It is manifest that the affidavit conforms to the statute, and is such as to entitle the affiant to a trial upon all questions of law, and all open questions of fact, involved in the controversy. Speer v. Athens, 85 Ga. 49, 11 S.E. 802. Inasmuch as the motion to dismiss the affidavit of illegality went to the whole affidavit, not being restricted to any one or more of the specific grounds set forth, the court erred in sustaining the motion. This is all that is absolutely necessary to decide on the writ of error now before us; but, upon some of the special questions made in the affidavit, and argued at the bar, we will indicate our opinion, as these questions will necessarily arise upon the trial of the broad issue which the affidavit presents.
2. In spirit and principle, the constitutional questions are virtually decided by Speer v. Athens, supra, and the authorities to which the opinion in that case refers. And see Mayor, etc., v. Klein, (Ala.) 7 So. 386.
3. The power given by the act of 1887 to improve any of the streets or any portion of the width of any street, in the city, includes the power to improve either the whole or less than the whole of any street. 2 Dill. Mun. Corp. § 799. In the exercise of this power, it was competent for the proper municipal authorities to divide Liberty street into two sections, and improve one of them with a double, and the other with a single, paved track; and, in assessing abutting property to defray the cost of the...
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